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2015-16 Section Report

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2015-16 Section Report ANNUAL REPORT OF THE SOUTH CAROLINA BAR ENVIRONMENT AND NATURAL RESOURCES SECTION The following selection of cases and legislative enactments may be of interest to the environmental practitioner and were selected from the 2015 calendar year.1 CASE LAW UPDATE SOUTH CAROLINA STATE CASES: Town of Arcadia Lakes et al. v. S.C. Dep’t of Envtl. Control et al., 404 S.C. 515745 S.E.2d 385 (Ct. App. 2013). After DHEC granted coverage under the State General Permit for Storm Water Discharges from Large and Small Construction Activities to a new subdivision, nearby property owners and a nearby municipality, Arcadia Lakes, appealed. Arcadia Lakes argued the permit would cause harm to the nearby Cary Lake, which was within Arcadia Lakes but the town had no responsibility for the lake as it was private. The Administrative Law Judge, Judge McLeod, denied Arcadia Lake’s motion for reconsideration and for stay of it Final Order and Decision issued on January 21, 2010, finding that Arcadia Lakes and the other petitioners lacked standing. The ALC’s decision was based on its finding that the petitioners lacked a personal stake in the litigation. The ALC specifically found that any injury, if it occurred, would be caused by a permit violation, not by the issuance of the permit itself. Thus, the ALC distinguished the issue of alleged “harms” occurring as a result of a permit violation from allegations of harm from the issuance of the permit itself, the former not composing a basis for standing. On appeal, the Court of Appeals affirmed the ALC’s holding that the petitioners did not have standing because they did not have a property interest affected by the development. The case was appealed to the South Carolina Supreme Court, with Certiorari granted and oral arguments held in March 2015. Following argument, the Supreme Court dismissed the appeal as moot, as the permitted project had been completed (Order dated April 9, 2015). Maull v. SCDHEC, et al., 411 S.C. 349768 S.E.2d 402 (Ct. App. 2015). The Court of Appeals affirmed the ALC’s decision and DHEC’s permit to issue an amendment to a critical area permit for a dock along the Intercoastal Waterway. Specifically, the Court of Appeals affirmed the ALC’s holding that the matter involved interests between two neighboring dock owners and was a private dispute that did not affect the public interest, relying on Dorman v. South Carolina Department of Health and Environmental Control, 350 S.C. 159, 565 S.E.2d 119 (Ct.App.2002). The Court did remand a portion of the case, finding that the ALC did not address issue of the extent to 1 Compiled by the Secretary of the Environmental and Natural Resources Section of the SC Bar, Chad N. Johnston, Esquire, of Willoughby & Hoefer, P.A., in Columbia, South Carolina. 1 which the proposed use could affect the value and enjoyment of adjacent owners as required by statute. Orr v. SCDHEC and Sumerel Poultry Farm, Docket No. 13-ALJ-07-0395-CC (McLeod, J.) (Jan. 12, 2015). This case involves a contested case from the issuance of an agricultural permit for a farm. It is indicative of the growing complexity of agricultural farm permitting appeals involving multiple expert witnesses on both sides, air issues, review of potential water impacts, health impacts. The contested case hearing took two days and the Order comprised 36 pages. DHEC’s permit was upheld. This case was appealed to the Court of Appeals and is currently awaiting assignment to the roster. Abel v. SCDHEC, Docket No. 14-ALJ-07-0282-CC (Robinson, J.) (Feb. 12, 2015). Pawley’s Island Community Church obtained a stormwater permit and Section 404 permit in 2000 to add a new sanctuary and make other improvements. The Abels filed a request for contested case hearing for the stormwater permit and the parties resolved the dispute in a consent order in 2001. The consent order called for half of the wetlands on the site to be preserved; the church agreed that the wetlands preserved by the consent order “shall remain in its natural state,” and the church agreed to maintain a vegetated buffer. In 2012, the church obtained new stormwater and Section 404 permits for a new construction project. The Abels requested a contested case hearing, seeking to enforce the 2001 consent order. The ALC ruled that the 2001 consent order was an enforceable contract, but its applicability was limited to the 2001 construction project. This case was appealed to the Court of Appeals and is currently awaiting assignment to the roster. Dreher v. South Carolina Department of Health and Environmental Control, 412 S.C. 244, 772 S.E.2d 505 (2015). The South Carolina Supreme Court found that the ALC and DHEC erred in denying a permit to construct a bridge to a small tract of land located on Folly Island, but surrounded by coastal tidelands and waters following the construction of two man-made canals. DHEC denied the permit, finding that the tract was a “coastal island” of less than two acres and therefore agency was prohibited from issuing the permit under the applicable OCRM regulations. The Supreme Court reversed the denial of the permit, finding that the exemption for Folly Beach within the specific exemption for Folly Island in the regulations controls over the more general regulatory definition of “coastal island.” Grand Bees Development, LLC v. South Carolina Department of Health and Environmental Control, Unpublished Opinion No. 2015-UP-269 (Ct. App.2015). In an unpublished opinion, the Court of Appeals upheld the adjacent landowner, Grand Bees Development, LLC’s challenge to DHEC’s granting of a permit modification for the expansion of the Bee’s Ferry Landfill, owned and operated by Charleston County. Petitioner successfully challenged DHEC's initial approval on the grounds that Charleston County had failed to obtain a “special exception” under the applicable zoning ordinances. Charleston County then amended its zoning ordinances to remove the requirement. DHEC again granted the permit modification, which petitioner also appealed on the grounds that Charleston County had not complied with a county ordinance, adopted in 1974, providing minimum standards for the operation of landfills, specifically that the operation of landfills “[c]onform with the surrounding environment” and “[c]onform with 2 future development of the area.” Charleston County argued that the zoning and land development regulations addressed the same substantive requirements, and thus DHEC’s determination also addressed the 1974 ordinance. The ALC determined that the zoning and land development regulations did not include similar language, and thus DHEC’s consistency determination was not sufficient. The Court of Appeals affirmed. Chestnut v. AVX Corporation, 413 S.C. 224, 776 S.E.2d 82 (2015). A three-Justice majority (Pleicones, Beatty, and Hearn) of the South Carolina Supreme Court reversed the dismissal of a negligence claim brought by a class of plaintiffs who alleged “stigma damages” to their properties as a result of contamination on adjoining real properties. The plaintiffs did not allege actual contamination on their own properties, but rather that contamination by allegedly “harmful” and “dangerous” chemicals on adjoining properties rendered their own properties “worthless,” “damaged” and “devalued.” The Supreme Court reversed the lower court’s dismissal of the negligence claim on the ground that the claim raised a novel question of South Carolina law, namely whether South Carolina recognizes environmental “stigma” damages. Without deciding the issue, the Court reasoned that further development of the facts on remand may allow the Court to decide whether to adopt a “no stigma damages rule,” an “all stigma damages rule” or a modified rule. The dissenting justices (Toal and Kittredge) concluded that the negligence claim should have been dismissed. Sierra Club v. South Carolina Department of Health and Environmental Control and Chem-Nuclear Systems, LLC, (S.C. Ct. App. 2015). This case was before the Court of Appeals for the second time, having reviewed and affirmed-in-part and remanded-in-part a previous order of the ALC reviewing a 2000 decision of DHEC to renew its license to operate. The ALC originally upheld the 2004 renewal in a 2005 order. The Court of Appeals reviewed the 2005 order and remanded to the ALC to determine whether Chem-Nuclear had complied with certain subsections of S.C. Code Reg. 61-63. On remand, the ALC affirmed DHEC's determination that Chem-Nuclear had complied with the regulations. In this 2015 decision, the Court of Appeals affirmed the decision of the ALC except with respect to four subsections of S.C. Code Reg. 61-63. The Court of Appeals held that DHEC failed to enforce these four subsections. Because the appellant informed the court at oral argument that it did not seek revocation of the license, the Court of Appeals remanded to DHEC to consider all information, including information subsequent to the 2005 order, to determine whether or not Chem-Nuclear has fully complied with the regulations. Chem-Nuclear has petitioned for Writ of Certiorari of the Court of Appeals’ decision, which petition is currently pending. Azar v. City of Columbia, 414 S.C. 307, 778 S.E.2d 315 (2015). The Supreme Court reversed the trial court’s grant of summary judgment in favor of the City of Columbia and remanded the case for consideration of the plaintiff’s claim that the City of Columbia’s practice of transferring water and sewer revenues to its General Fund for business and economic development expenditures was prohibited under S.C. Code Ann. §§ 6-1-330 and 6-21-440. Section 6- 1-330 requires that public revenues derived from fees imposed to finance the provision of public services must be used to pay costs related to the provision of the service.
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